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2014 (9) TMI 286 - HC - Income TaxRejection of application of withdrawal of notice for reopening of assessment u/s 148 – Extended period of limitation - Notice time barred or not – Invocation of section 150(1) to be made or not – Held that:- The reopening of assessment is proposed to be made in relation to the AY 2003-2004 - the period of six years prescribed u/s 149, is already over - the Department should establish that this case falls within anyone of the two requirements of Section 150(1) - the Tribunal had remitted the matter back to the AO for a fresh consideration on the aspect of cost of construction - But at the same time, the Tribunal also rejected the stand taken by the Department that spreading over is not possible – also in Rajinder Nath Vs CIT [1979 (8) TMI 3 - SUPREME Court] it has been decided that a finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case that is to say in respect of the particular assessee and in relation to the particular assessment year - the assessee himself appears to have claimed that the construction was spread over to 2-3 years – CIT(A) rendered a finding that the unexplained investment should be allowed to be spread over - That finding is upheld by the Tribunal – thus, the contention of the revenue that there was a finding and that this lead to the reopening of the assessment, has to be upheld - As a matter of fact, the reopening of assessment is a natural consequence of the claim for spread over – thus, the order fo the Tribunal is to be upheld – Decided against assessee.
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